Taxation Authority and Another vs Parasmal

S.B. Sakrikar, J.—Appellants-defendants have directed this appeal against the judgment and the decree dated 23rd January, 1990, passed by ADJ, Kukshi, District Dhar in Civil Suit No. 11A/87, thereby decreeing the suit filed by the respondent-plaintiff, for the relief of declaration and permanent injunction.

Briefly stated the facts of the case are that the respondent-plaintiff is a bus owner and has a permit to ply his buses from Jobat to Kukshi for a distance of 37 kms. This distance of 37 kms. consists of 21 kms. "Kachhi Sadak" and 16 kms. "Pakki Sadak" as defined under the M.P. Motor Vehicles Taxation Act, 1947 (for short ''the Taxation Act of 1947''). The plaintiff also has a permit to ply his other bus from Nisarpur to Dhar. The total distance is 115 kms. consists of 29 kms. "Kachhi Sadak" and 86 kms. "Pakki Sadak". The plaintiff is depositing the taxes as per Schedule annexed to the Taxation Act of 1947.

On 23.1.1987 appellant No. 1 exercising powers u/s "3-A" of the Taxation Act, passed two separate orders and imposed an additional tax on the passenger bus operated on the aforesaid roads by the plaintiff-respondent, on the ground that as the respondent-plaintiff is operating his passenger buses all around the year on the- said routes, and liable to pay the tax payable under the Schedule considering that the said roads are "Pakki Sadaks" and demanded respectively the additional tax of Rs. 5,125/- on the bus plying for Dhar to Nisarpur and Rs. 19,458/- on the bus plying from Jobat to Kukshi. The aforesaid orders and the demand notice of additional taxes issued by the appellant No. 1, have been challenged by the plaintiff by filing a suit for declaration that the order dated 23.1.1987 passed by appellant No. 1 was illegal and without jurisdiction. He also prayed for permanent injunction to be issued against the appellant restraining him from recovery of the amount of additional tax of Rs. 24,583/- as demanded in compliance of the orders dated 23.1.1987. The plaintiff challenged the orders 1xs. PI and P2 passed by appellant No. 1 mainly on the ground that the Authority has no jurisdiction to pass such order considering that the roads of which the two vehicles are being operated all around the year should be considered as "Pnkki Sadak" and liable for taxation accordingly.

The appellants defended the plaintiff''s suit, mainly on the ground that the Court has no jurisdiction to entertain the suit as filed by the plaintiff. On behalf of the appellants-defendants, it is contended that under the provisions of the Motor Vehicles Taxation Act, the appellant No. 1 has an authority to pass the orders under consideration for levy of additional tax on the public service vehicles. It is also contended that under the provisions of the aforesaid Act, the jurisdiction of the Civil Court is ousted, against the order of assessment or imposition of tax ordered by the Taxation Authority.

The learned Trial Judge, on framing the issues and considering- the legal aspect of the case, allowed the plaintiff''s suit, by the impugned judgment and passed a decree in his favour. Aggrieved, the appellants have filed this appeal.

I have heard Mr. V.P. Khare, learned D.G.A. for appellants and Mr. C.L. Yadav, learned Counsel for the respondent.

Considering the submissions of the learned Counsels for parties and on perusal of the record and the facts stated in the plaint, the following questions arise for decision in this appeal.

(i) Whether orders Exs. P1 and P2 passed by appellant No. 1 are contrary to the provisions of the Taxation Act, 1947 and illegal.

(ii) Whether a civil suit as filed by the plaintiff is competent and the Civil Court has jurisdiction to hear and pass the impugned decree.

On the aforesaid questions, learned Counsel for respondent contended that the Taxation Act, 1947, recognised two types of road for the purpose of levy of the tax on the public service vehicle. u/s 2(aa), a "Kachha Road" is defined whereas Section 2(aa-2) defines "Pakka Road". According to the definitions given in the Act "Kachha Road" means a road which is not metalled whereas the "Pakka Road" means the road which is metalled road. The learned Counsel for appellant No. 1, while exercising powers u/s 3-a of the said Act, passed the orders Exs. P1 and P2 and imposed additional tax on the respondent considering that the vehicles operated by the respondent under the permit issued by the Transport Authority from Dhar to Nisarpur and Jobat to Kukshi, should be considered "Pakka Road" as the respondent operates his buses on the said road all around the year. The reasons given by the Authority for considering both the roads as Pakka Roads is contrary to the provisions of the Taxation Act, 1947 and, therefore, illegal. The respondent-plaintiff is competent to challenge such illegal orders by filing a suit before the regular Civil Court. He also submitted that the suit as filed by the respondent is covered u/s 9 of the C.P.C. and the Trial Court has committed no error in passing a decree in favour of the plaintiff.

As against this, the contention of the learned Counsel for appellants is that appellant No. 1 has jurisdiction to impose additional tax u/s 3-a of the Act and it cannot be challenged in any Court of law by filing a suit. The learned Counsel submitted that a remedy of appeal u/s 20 of the said Act is provided against the orders passed by the Taxation Authority imposing additional tax u/s 3-a of the said Act. As such, the Civil Court has no jurisdiction to entertain the suit.

On perusal of the definitions of Kachha Road and Pakka Road as given in the Act, the view taken by the Taxation Authority for considering the roads under dispute as Pakka Roads, is contrary to the definitions of the Pakka Road as given under the Act. As the order of the Taxation Authority is apparently contrary to the definition of the Kachha Road and Pakka Road given in the Act, the orders Exs. P1 and P2 must be considered as illegal and for challenging such orders a civil suit is competent in view of the provisions of Section 9 of the C.P.C.

It is true that u/s 19 of the Taxation Act, 1947, a Civil Suit and the other proceedings are barred and u/s 20, an appeal is provided but considering the provisions of Section 19, it emerged that a suit or other proceedings in the civil suit are barred only with regard to the matter for which a provision is made in this Act. Section 20 makes a provision for filing the appeal by any person aggrieved by the order relating to the payment or to the refund of a tax. It never speaks about the filing of the appeal against the illegal order of the levy of tax passed by the Taxation Authority. The bar contained u/s 19 for filing a suit before the Civil Court is applicable when the order passed by the Authority is passed within the purview of the Act or Rules made thereunder but it never bars a suit to challenge an act which is beyond or contrary to the provisions of the Act or Rules. As stated earlier, the order Exs. P1 and P2 passed by the appellant No. 1 are absolutely contrary to the provisions of the Act and are illegal and as such, for challenging the legality of the said orders, a civil suit is competent u/s 9 of the C.P.C.

In view of the foregoing discussions and the facts and circumstances of the case on hand and the law applicable, I do not find that the Trial Court has committed any error in passing the impugned judgment and the decree in favour of the plaintiff-respondent. The impugned judgment of the Trial Court is well founded and based on proper application of the law, requiring no interference in this appeal.

In the result, the appeal filed on behalf of the appellants fails and it is accordingly dismissed. The judgment and the decree of the Trial Court stands affirmed. The parties are left to bear their own costs of this appeal. Counsel fee as per Schedule is allowed, on certificate. A decree be drawn up accordingly.